[Federal Register Volume 63, Number 232 (Thursday, December 3, 1998)]
[Rules and Regulations]
[Pages 66766-66768]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32189]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 217 and 227
[Docket No. 950427117-8292-05; I.D. 112398G]
RIN 0648-AH97
Sea Turtle Conservation; Shrimp Trawling Requirements
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Temporary rule; request for comments.
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SUMMARY: NMFS notifies fishermen that it has renewed the authorization
for shrimp trawlers to use limited tow times as an alternative to the
otherwise required use of Turtle Excluder Devices (TEDs) in the inshore
waters of Mississippi. Its previous authorization expired on November
23, 1998. NMFS also has extended the same authorization in Alabama
inshore waters which otherwise would expire December 1, 1998 (63 FR
62959, November 10, 1998). The intent of this action is to provide
adequate protection for threatened and endangered sea turtles when
debris conditions may make TED-use impracticable.
DATES: The renewal and the extention are both effective from November
30, 1998 through December 30, 1998. Comments on this notification are
requested and must be received by December 30, 1998.
ADDRESSES: Comments on this action should be addressed to the Chief,
Endangered Species Division, Office of Protected Resources, NMFS, 1315
East-West Highway, Silver Spring, MD 20910.
FOR FURTHER INFORMATION CONTACT: Charles A. Oravetz, 727-570-5312, or
Barbara A. Schroeder, 301-713-1401.
SUPPLEMENTARY INFORMATION:
Background
All sea turtles that inhabit U.S. waters are listed as either
endangered or threatened under the Endangered Species Act of 1973
(ESA). The Kemp's ridley (Lepidochelys kempii), leatherback
(Dermochelys coriacea), and hawksbill (Eretmochelys imbricata) are
listed as endangered. Loggerhead (Caretta caretta) and green (Chelonia
mydas) turtles are listed as threatened, except for populations of
green turtles in Florida and on the Pacific coast of Mexico, which are
listed as endangered.
The incidental take of these species, as a result of shrimp
trawling activities, has been documented in the Gulf of Mexico and
along the Atlantic. Under the ESA and its implementing regulations,
taking sea turtles is prohibited, with exceptions identified in 50 CFR
227.72. Existing sea turtle conservation regulations (50 CFR part 227,
subpart D) require most shrimp trawlers operating in the Gulf and
Atlantic areas to have a NMFS approved TED installed in each net rigged
for fishing, year-round.
The regulations provide for the use of limited tow times as an
alternative to the use of TEDs for vessels with certain specified
characteristics or under certain special circumstances. The provisions
of 50 CFR 227.72(e)(3)(ii) specify that the Assistant Administrator for
Fisheries, NOAA (Assistant Administrator), may authorize ``compliance
with tow time restrictions as an alternative to the TED requirement, if
[he] determines that the presence of algae, seaweed, debris or other
special environmental conditions in a particular area makes trawling
with TED-equipped nets impracticable.'' The provisions of 50 CFR
227.72(e)(3)(i) specify the maximum tow times that may be used when
authorized as an alternative to the use of TEDs. The tow times may be
no more than 55 minutes from April 1 through October 31, and no more
than 75 minutes from November 1 through March 31. NMFS has selected
these tow time limits to minimize the level of mortality of sea turtles
that are captured by trawl nets not equipped with TEDs.
Recent Events
On September 27, Hurricane Georges hit the Mississippi and Alabama
coasts. The hurricane remained nearly stationary over the coastal area
and south Alabama for about 2 days and deposited as much as 36 inches
(91 cm) of rain on some areas. The combination of heavy rains and
hurricane storm surge produced severe flooding in south Mississippi,
Alabama, and Louisiana rivers. This flooding deposited large amounts of
debris in the inshore waters of those states.
After the hurricane, NMFS was notified by the Director of the
Marine Resources Division of the Alabama Department of Conservation and
Natural Resources (Alabama Director), the Director of the Mississippi
Department of Marine Resources (Mississippi Director), and the
Secretary of the Louisiana Department of Wildlife and Fisheries that
the debris conditions created great difficulty for shrimpers in inshore
waters by fouling the trawl nets and clogging the TEDs. As a result of
the special environmental conditions that may have made trawling with
TED-equipped nets impracticable, the Assistant Administrator issued
emergency notifications to authorize the use of restricted tow times as
an alternative to the use of TEDs in the inshore waters of the three
affected states. In Alabama inshore waters, the authorization was
effective from October 7, 1998, through November 5, 1998 (63 FR 5505,
October 14, 1998), and was then extended through November 30 (63 FR
62959, November 10, 1998) after the Alabama Director informed NMFS that
the debris conditions in Mississippi Sound had been worsening as debris
had been flushed out of Mobile Bay and into Mississippi Sound. In
Mississippi inshore waters and Louisiana inshore waters northeast of
the Mississippi River, the use of limited tow times as an alternative
to TEDs was authorized from October 23 through November 22, 1998 (63 FR
57620, October 28, 1998).
NMFS has received letters from the Mississippi Director and the
Alabama Director, dated November 17 and November 19, 1998,
respectively, stating that excessive debris conditions continue to
exist. The letter from the Alabama Director requested the extension of
the authorization to use limited tow times as an alternative to the use
of TEDs in Alabama inshore waters and the letter from the Mississippi
Director requested the renewal of the authorization to use limited tow
times as an alternative to the use of TEDs in Mississippi inshore
waters. The letter from the Alabama Director stated that many nearshore
areas remain untrawlable despite shrimpers' efforts so far to remove
the debris.
Special Environmental Conditions
The Assistant Administrator finds that special environmental
conditions following Hurricane Georges have persisted in Alabama and
Mississippi inshore waters and may make trawling with TED-equipped nets
impracticable. Therefore, the Assistant Administrator, by this notice,
renews the authorization to use restricted tow times as an alternative
to the use of TEDs in the inshore waters of Mississippi and extends the
authorization to use restricted tow times as an alternative to
[[Page 66767]]
the use of TEDs in the inshore waters of Alabama. The states of
Mississippi and Alabama are continuing to monitor the situation and are
cooperating with NMFS in determining the ongoing extent of the debris
problem in their inshore waters. Moreover, both states' enforcement
officers have assisted with the enforcement of the restricted tow
times. In his November 19 letter, the Alabama Director reported that
compliance with the tow times has been excellent, according to the
enforcement officers, and the attitude and cooperation of the fishermen
have been very good. He stated that Alabama enforcement officers will
continue to monitor the area for the duration of this exemption
extension. In Mississippi, the Department of Wildlife, Fisheries, and
Parks, Marine Enforcement Division reported to the Mississippi Director
that compliance with the tow time limits has also been excellent.
Ensuring compliance with tow time restrictions is critical to effective
sea turtle protection, and the enforcement effort undertaken by the
states and the compliance among the fishermen are important factors
enabling NMFS to issue this authorization.
Continued Use of TEDs
NMFS encourages shrimp trawlers in Mississippi and Alabama inshore
waters who are authorized under this notification to use restricted tow
times to continue to use TEDs if possible. NMFS' studies have shown
that the problem of clogging by seagrass, algae, or by other debris is
not unique to TED-equipped nets. When fishermen trawl in problem areas,
they may experience clogging with or without TEDs. A particular concern
of fishermen, however, is that clogging in a TED-equipped net may hold
open the turtle escape opening and increase the risk of shrimp loss. On
the other hand, TEDs also help exclude certain types of debris and
allow shrimpers to conduct longer tows.
NMFS' gear experts provide several operational recommendations that
may allow some fishermen to continue using TEDs without resorting to
restricted tow times. Hard TEDs that are made of either solid rod or
hollow pipe in a bottom-opening configuration and that incorporate a
bent angle at the escape opening are recommended. In addition, the
installation angle of a hard TED in the trawl extension is an important
performance element in excluding debris from the trawl. High
installation angles can result in debris clogging the bars of the TED;
NMFS recommends an installation angle of 45 deg., relative to the
normal horizontal flow of water through the trawl, to optimize the
TED's ability to exclude turtles and debris. Furthermore, the use of
accelerator funnels, which are allowable modifications to hard TEDs, is
not recommended in areas with heavy amounts of debris or vegetation.
Finally, the webbing flap that is usually installed to cover the turtle
escape opening may be modified to help exclude debris quickly; the
webbing flap can either be cut horizontally to shorten it so that it
does not overlap the frame of the TED or be slit in a fore-and-aft
direction to facilitate the exclusion of debris.
All of the preceding recommendations represent legal configurations
of TEDs for shrimpers in the inshore areas of Alabama (not subject to
special requirements effective in the Gulf Shrimp Fishery-Sea Turtle
Conservation area). This notice extends, through December 30, 1998, the
authorization to use restricted tow times as an alternative to the
otherwise required use of TEDs in the inshore waters of Alabama and
renews the same authorization in Mississippi inshore waters, effective
from November 30, 1998 through December 30, 1998. This notice does not
authorize any other departure from the TED requirements, including any
illegal modifications to TEDs. In particular, if TEDs are installed in
trawl nets, they may not be sewn shut.
Alternative to Required Use of TEDs
The authorization provided by this notification applies to all
shrimp trawlers that would otherwise be required to use TEDs in
accordance with the requirements of 50 CFR 227.72(e)(2) who are
operating in inshore waters of Mississippi or Alabama, in areas which
the states have opened to shrimping. ``Inshore waters,'' as defined at
50 CFR 217.12, means the marine and tidal waters landward of the 72
COLREGS demarcation line (International Regulations for Preventing
Collisions at Sea, 1972), as depicted or noted on nautical charts
published by NOAA (Coast Charts, 1:80,000 scale) and as described in 33
CFR part 80. Instead of the required use of TEDs, shrimp trawlers,
through December 30, 1998, may opt to comply with the sea turtle
conservation regulations by using restricted tow times. If they do so,
their tow times must not exceed 75 minutes, measured from the time
trawl doors enter the water until they are retrieved from the water.
Additional Conditions
NMFS expects that shrimp trawlers operating in Mississippi and
Alabama inshore waters without TEDs, in accordance with this
authorization, will retrieve debris that is caught in their nets and
return it to shore for disposal or to other locations defined by the
Mississippi or Alabama Director, rather than simply disposing the
debris at sea. Proper disposal of debris should help the restoration of
the shrimping grounds in the wake of the hurricane. Shrimp trawlers are
reminded that regulations under 33 U.S.C. 1901 et seq. (Act to Prevent
Pollution From Ships) may apply to disposal at sea.
Alternative to Required Use of TEDs; Termination
The Assistant Administrator, at any time, may modify this
authorization through publication of a notice in the Federal Register,
if the Assistant Administrator determines that the alternative
authorized is not sufficiently protecting turtles, as evidenced by
observed lethal takes of turtles onboard shrimp trawlers, elevated sea
turtle strandings, or insufficient compliance with the authorized
alternative. If necessary, the Assistant Administrator could modify the
affected area or impose any necessary additional or more stringent
measures, including more restrictive tow times or synchronized tow
times. The Assistant Administrator may also terminate this
authorization at any time for these same reasons, or if compliance
cannot be monitored effectively, or if conditions do not make trawling
with TEDs impracticable. This authorization will expire automatically
December 31, 1998, unless it is extended through another notice
published in the Federal Register.
Classification
This action has been determined to be not significant for purposes
of E.O. 12866.
The Assistant Administrator has determined that this action is
necessary to respond to an emergency situation to allow more efficient
fishing for shrimp while providing adequate protection for endangered
and threatened sea turtles pursuant to the ESA and other applicable
law.
Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator finds
that there is good cause to waive prior notice and opportunity to
comment on this action. It would be contrary to the public interest to
provide prior notice and opportunity for comment because doing so would
prevent the agency from providing relief within the necessary
timeframe. The Assistant Administrator finds that an unusually large
amount of debris exists in the aftermath of Hurricane Georges, creating
a special
[[Page 66768]]
environmental conditions that may make trawling with TED-equipped nets
impracticable and that the use of limited tow times for the described
area and time instead of TEDs would adequately protect threatened and
endangered sea turtles. Notice and comment are contrary to the public
interest in this instance.
Because this action relieves a restriction it is not subject to a
delay in effective date under 5 U.S.C. 553(d)(1).
As prior notice and an opportunity for public comment are not
required to be provided for this notification by 5 U.S.C. 553 or by any
other law, the analytical requirements of 5 U.S.C. 601 et seq. are
inapplicable.
The Assistant Administrator prepared an Environmental Assessment
(EA) for the final rule requiring TED use in shrimp trawls and creating
the regulatory framework for the issuance of notices such as this (57
FR 57348, December 4, 1992). Copies of the EA are available (see
ADDRESSES).
Dated: November 27, 1998.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
[FR Doc. 98-32189 Filed 11-30-98; 3:45 pm]
BILLING CODE 3510-22-F
